MANOS v. CAIRA

United States District Court, Northern District of Illinois, Eastern Division

March 30, 2001

JOHN MANOS, A.K.A. JOHN MANOLATOS, PLAINTIFF,V.ANTHONY CAIRA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS POLICE COMMANDER FOR THE VILLAGE OF ELMWOOD PARK; TOM BAGLIA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE FOR THE VILLAGE OF ELMWOOD PARK; GEORGE BERTUCCI, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DEPUTY CHIEF OF POLICE FOR THE VILLAGE OF ELMWOOD PARK; FRANK FAGIANO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS POLICE DETECTIVE FOR THE VILLAGE OF ELMWOOD PARK; ELMWOOD PARK POLICE DEPARTMENT; VILLAGE OF ELMWOOD PARK; STEVEN KRUEGER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ASSISTANT ILLINOIS STATE'S ATTORNEY FOR THE COUNTY OF COOK; RUSSELL BAKER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ASSISTANT ILLINOIS STATE'S ATTORNEY FOR THE COUNTY OF COOK, RICHARD DEVINE, IN HIS OFFICIAL CAPACITY AS ILLINOIS STATE'S ATTORNEY FOR THE COUNTY OF COOK, DEFENDANTS.

John Manos ("Manos"), also known as John Manolatos, has sued
Anthony Caira, Police Commander for the Village of Elmwood Park;
Tom Braglia,*fn1 Chief of Police for the Village of Elmwood
Park; George Bertucci, Deputy Chief of Police for the Village of
Elmwood Park; Frank Fagiano, Police Detective for the Village of
Elmwood Park, in their individual and official capacity; Elmwood
Park Police Department; Village of Elmwood Park; Steven Krueger
and Russell Baker individually and in their official capacity as
Cook County Assistant State's Attorneys; and Richard Devine in
his official capacity as Cook County State's Attorney, under
42 U.S.C. § 1983 ("section 1983") for alleged deprivation of his
rights under the Second, Fourth, and Fourteenth Amendments to the
United States Constitution. Defendants have moved to dismiss the
complaint pursuant to the Federal Rules of Civil Procedure
("Rule") 12(b)(1) and 12(b)(6). For the reasons set forth below,
the Court
grants in part and denies in part defendants' motions.

The Rooker-Feldman abstention doctrine prevents the federal
district court's exercise of jurisdiction over the review of
decisions of state courts. District of Columbia Court of Appeals
v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 75 L.Ed.2d 206
(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415, 44
S.Ct. 149, 68 L.Ed. 362 (1923). If the state court judgment
caused plaintiff's alleged injury, then the Rooker-Feldman
doctrine precludes the federal court's exercise of jurisdiction.
Remer v. Burlington Area Sch. Dist., 205 F.3d 990, 996 (7th
Cir. 2000). However, if the plaintiff alleges "that people
involved in the decision violated some independent right of his,
. . . then he can, without being blocked by the Rooker-Feldman
doctrine, sue to vindicate that right and show as part of his
claim for damages that the violation caused the decision to be
adverse to him and thus did him harm." Nesses v. Shepard,
68 F.3d 1003, 1005 (7th Cir. 1995). "Otherwise there would be no
federal remedy for a violation of federal rights whenever the
violator so far succeeded in corrupting the state judicial
process as to obtain a favorable judgment. . . ." Id. "This
result would be inconsistent with cases in which, for example,
police officers are sued under 42 U.S.C. § 1983 for having
fabricated evidence that resulted in the plaintiff's being
convicted in a state court." Id.

The problem, as discussed above, is that Manos has alleged
throughout the Complaint that defendants have acted in bad faith
and have conspired to harass him with vindictive bias. Having
been provided no evidence to cast doubt on the Manos' version of
events as described in the Complaint, the Court cannot find that
it is required to abstain under Younger.

The last jurisdictional consideration involves the Eleventh
Amendment*fn2 and surprisingly was not addressed by the Cook
County State's Attorney or the Assistant State's Attorneys. In
Count III, Manos has sued Krueger and Baker in their official
capacity as Assistant State's Attorneys and seeks compensatory
and punitive damages.

A suit against Assistant State's Attorneys in their official
capacity is a suit against the Cook County State's Attorney. See
Taylor v. Partee, No. 90 C 1134, 1991 WL 136015, at *2 (N.D.Ill.
July 17, 1991). "[T]he Eleventh Amendment prohibits suits against
the state, its agencies, and its officials acting in their
official capacities." Id. "Illinois has made its state's
attorneys `state officials' and liability under Section 1983 does
not extend either to suits against the state itself or to
official capacity lawsuits against state officials." Id.
(discussing Ingemunson v. Hedges, 133 Ill.2d 364, 367, 140
Ill.Dec. 397, 549 N.E.2d 1269 (Ill. 1990), and Houston v. Cook
County, 758 F. Supp. 1225, 1227 (N.D.Ill. 1990)).

Manos' suing Baker and Krueger in their official capacity as
Assistant State's Attorneys in Count III is the same as his suing
the Cook County State's Attorney himself. Because the Cook County
State's Attorney is a "state official," Manos' claim for damages
against the Assistants State's Attorneys in their official
capacity is jurisdictionally barred by the Eleventh Amendment.

II. Rule 12(b)(6)

On a motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6), the court accepts the "well-pleaded allegations in
the complaint as true and draw[s] all reasonable inferences in
favor of the plaintiff." Hentosh v. Herman M. Finch Univ. of
Health Scis./The Chicago Med. Sch., 167 F.3d 1170, 1173 (7th
Cir. 1999). Dismissal is proper where "it appears beyond doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). However, if the
complaint fails to allege an element necessary to obtain relief,
dismissal is appropriate. R.J.R. Servs., Inc. v. Aetna Cas. &
Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989).

Baker and Krueger argue that they should be afforded absolute
immunity from liability for damages for their participation in
and their alleged false representations to the court at the four
hearings regarding Manos' motions for the return of his firearms.
The Court agrees.

"Prosecutors may be entitled to either absolute or qualified
immunity from civil liability under 42 U.S.C. § 1983 for actions
undertaken pursuant to their official duties." Mendenhall v.
Goldsmith, 59 F.3d 685, 689 (7th Cir. 1995). "When determining
which type of immunity a government official enjoys, we look to
the nature of the function that the official was performing in
the particular case." Henderson v. Lopez, 790 F.2d 44, 46 (7th
Cir. 1986).

Thus, the Court must examine the function that Baker and
Krueger were performing in this case, that is, appearing before
judges and allegedly making false statements in opposition to
Manos' motions for the return of firearms because they claimed
they lacked evidence that he was the rightful owner.*fn3 Under
Illinois law: "Upon conviction of an offense in which a weapon
was used or possessed by the offender, any weapon seized shall be
confiscated by the trial court." 720 ILL. COMP. STAT. 5/24-6(a).
Further, "[a]ny stolen weapon so confiscated, when no longer
needed for evidentiary purposes, shall be returned to the person
entitled to possession, if known. . . . The court may not order
the transfer of the weapon to any private individual . . . other
than to return a stolen weapon to its rightful owner." 720 ILL.
COMP. STAT. 5/24-6(b). Illinois law thus required the court to
determine the rightful owner of the stolen firearms. Baker and
Krueger were aiding the court in its statutory obligation to
determine whether Manos was entitled to possession of the weapons
stolen by Skoufis. In enforcing Illinois law, Baker and Krueger
were acting as advocates for the state. Thus, the Court finds
that the assistant state's attorneys were performing an
advocate's duty and function when opposing Manos' motion for the
return of weapons in order to aid the court in ascertaining
whether he was entitled to possession of the weapons.

This is not the end of the analysis, however. The Court "must
consider three factors in determining whether a prosecutor is
absolutely immune from damages for her conduct. . . ." Lucien v.
Preiner, 967 F.2d 1166, 1167 (7th Cir. 1992).

With regard to the first factor, at common law, prosecutors
were absolutely immune from liability for damages for making
false statements in judicial proceedings and for eliciting false
testimony from witnesses. Burns v. Reed, 500 U.S. 478, 489-90,
111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). "This immunity was
extended to encompass a prosecutor's conduct in `any hearing
before a tribunal which performed a judicial function.'"
Lucien, 967 F.2d at 1167 (quoting Burns, 500 U.S. at 479, 111
S.Ct. 1934). It is clear from the allegations in the Complaint
that Baker and Krueger's conduct of which Manos complains
occurred solely at the four hearings before Judges Golniewicz and
Prendergast.

With regard to the second factor, the risk of vexatious
litigation is clear. If an assistant state's attorney did not
enjoy absolute immunity for statements made at hearings regarding
the ownership of confiscated weapons, he would risk liability for
damages any time he expressed doubt that the person claiming to
be the owner of confiscated weapons was entitled to possession or
opposed the motion for the return based on a lack of evidence of
ownership. This, in turn, might have a chilling effect on an
assistant state's attorney's advocacy for the state.

The Court's analysis of the third factor also favors granting
Baker and Krueger absolute immunity. As stated by the Seventh
Circuit in Henderson v. Lopez, Illinois law provides many
checks on assistant state's attorneys for abuses of authority.
790 F.2d at 46. First, "a party who disagrees with the action
resulting from the state's attorney's opinion may seek a writ of
mandamus." Id. at 47. Second, "a state's attorney always stands
amenable to professional discipline by an association of her
peers." Id. Third, "the county officials who appoint assistant
state's attorneys may remove her from office for abusing her
position. Those officials, as well as the state's attorney, must
answer to the public at the ballot box for incidents which the
public will not tolerate." Id. For the same reasons discussed
in Henderson, the Court finds that assistant state's attorneys
are subject to numerous checks for abuses of authority.

For the above reasons, the Court finds that Baker and Krueger
are entitled to absolute immunity for the representations made to
the court at the hearings regarding Manos' motion for the return
of his firearms. The Court thus grants Baker and Krueger's motion
to dismiss all claims against them for liability for damages.

B. Second Amendment Claim

Manos alleges that all defendants have violated his right to
keep and bear arms as guaranteed under the Second Amendment.
(See Compl., Count I ¶ 62, Count II ¶ 2, Count III ¶ 17.) The
Court disagrees. The Second Amendment guarantees the right to
bear arms and "regulates only the activities of the federal
government — not those of the states or their subdivisions."
Sklar v. Byrne, 727 F.2d 633, 637 (7th Cir. 1984); see Quilici
v. Village of Morton Grove, 695 F.2d 261, 269-70 (7th Cir. 1982)
(holding that Second Amendment is not enforceable against state
action). Defendants in this action are neither part of the
federal government nor employed by the federal government. As
such, Manos' Second Amendment claim fails to state a claim and
the Court dismisses
all claims based on the Second Amendment with prejudice.

First, defendants Caira, Braglia, Bertucci, and Fagiano argue
that Manos fails to state a claim against the defendants in their
individual capacity for a violation of his rights under the
Fourteenth Amendment Due Process Clause. See Parratt v. Taylor,
451 U.S. 527, 540, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981),
overruled in part by Daniels v. Williams, 474 U.S. 327, 330-31,
106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Where plaintiff bases a
procedural due process claim on the random and unauthorized
conduct of a state actor and a meaningful postdeprivation remedy
exists at state law, "a plaintiff must either avail herself of
the remedies guaranteed by state law or demonstrate that the
available remedies are inadequate." Doherty v. City of Chicago,
75 F.3d 318, 323 (7th Cir. 1996) (discussing Hudson v. Palmer,
468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), and
Daniels, 474 U.S. at 339-40, 106 S.Ct. 662). "For intentional,
as for negligent deprivations of property by state employees, the
state's action is not complete until and unless it provides or
refuses to provide a suitable postdeprivation remedy." Hudson,
468 U.S. at 533, 104 S.Ct. 3194.

The Court examines the cases upon which Manos relies and finds
each one distinguishable from the instant case. The Court
addresses each in turn.

First, Manos relies on People ex rel. Carey v. Covelli
(hereinafter "Covelli") for the proposition that he may not
proceed in a civil action to recover his firearms. 336 N.E.2d at
759. In Covelli, where daughters of murder victim Sam Giancana
obtained an injunction from an Illinois chancery court against
the Cook County State's Attorney restraining him from inspecting,
reviewing, listening to, opening, or exerting control over a
desk, locked file cabinet, and audio tape cassettes seized from
Giancana's home after his death, the Illinois Supreme Court
issued a writ of mandamus commanding the chancery court judge to
expunge his order and dismiss the complaint because pursuant to
statute, the daughters should have sought relief from the judge
before whom the items seized were returned. Id. at 764. The
Court fails to see how Covelli supports Manos' cause. The
Covelli court did not address whether a replevin action was
available to the daughters. Further, the state's attorney's
position in Covelli that the daughters had an adequate remedy
at law by way of an action in replevin further bolsters
defendants' argument that such a remedy indeed exists.

Further, the Court finds People v. Hermann, 150 Ill. App.3d 224,
103 Ill.Dec. 525, 501 N.E.2d 842, 845-46 (2d Dist. 1986),
and People v. Aikens, 133 Ill. App.2d 131, 264 N.E.2d 850 (3d
Dist. 1970), inapposite. These cases involved defendants in
criminal cases who sought the return of property seized pursuant
to search warrants and consent searches or upon arrest. Neither
case addressed whether a replevin action is available to a
complaining witness whose property is used as evidence in a
criminal trial. Hermann merely stands for the proposition that
the Law Enforcement Disposition of Property Act, 765 ILL. COMP.
STAT. 1030/1 et seq., and its procedures are inapplicable with
regard to the disposition of property under the Criminal Code,
725 ILL. COMP. STAT. 5/108-11. 103 Ill.Dec. 525, 501 N.E.2d at
845-46. The Aikens one-paragraph abstract summary states the
court held that the civil remedy of replevin was unavailable to a
criminal defendant who sought to recover property surrendered
upon arrest, but that he was entitled to a hearing to determine
the reason for withholding the property and ownership of the
property. 264 N.E.2d at 850. The Court finds Manos' reliance on
Hermann and Aikens puzzling. On one hand, Manos argues that
only the defendant in the criminal case has standing to appeal
any rulings in the criminal case and that he has no standing
because he was merely a witness. On the other hand, he tries to
analogize his case to Hermann and Aikens in which criminal
defendants, who have standing to appeal rulings in the criminal
case, were forced by courts to litigate before the criminal court
regarding seized property. Accordingly, the Court finds the cases
on which Manos relies inapposite because they fail to address
whether a replevin action is available to a non-defendant.

As argued by the State's Attorney in Covelli, under Illinois
law, a non-defendant seeking the return of seized property has an
adequate remedy at law by way of a replevin action. See
Covelli, 336 N.E.2d at 762-63; 735 ILL. COMP. STAT. 5/19-101
("Whenever any goods or chattels have been wrongfully distrained,
or otherwise wrongfully taken or are wrongfully detained, an
action of replevin may be brought for the recovery of such goods
or chattels, by the owner or person entitled to possession.").
Manos has provided no case which holds otherwise and the Court
finds none. After all, if, as Manos argues, the Appellate Court
of Illinois has found that Manos, who is not the criminal
defendant and is merely a witness in the criminal trial, has no
standing to appeal the court's denials of his motions for the
return of the firearms in the criminal case, it would be highly
unlikely that Illinois courts would deny such a person the civil
remedy of replevin.

Because Illinois provides Manos with an adequate
post-deprivation remedy for the alleged seizure of his property
by defendants Caira, Braglia, Bertucci, and Fagiano in their
individual capacity, the Court finds that no Fourteenth Amendment
Due Process violation occurred. Accordingly, the Court dismisses
Manos' claim based on the Due Process Clause of the Fourteenth
Amendment with prejudice.

Second, the municipal employer defendants argue that Manos does
not state any claim against them — either under the Fourteenth
Amendment or the Fourth Amendment — because Manos has not
sufficiently alleged that his injury was caused by a policy of
those municipal employers.

(1) an express policy that, when enforced, causes a
constitutional deprivation; (2) a widespread practice
that, although not authorized by written law or
express municipal policy, is so permanent and well
settled as to constitute a custom or usage with the
force of law; or (3) an allegation that the
constitutional injury was cause by a person with
final policymaking authority.

Id. (internal citations and quotations omitted).

The Court finds that the Complaint fails to state a claim
against the Cook County State's Attorney. The Complaint is
completely devoid of any allegation that the Cook County State's
Attorney was personally involved in the hearings or that Baker or
Krueger acted pursuant to a policy or custom. Therefore, the
Court dismisses Count IV in its entirety and the Cook County
State's Attorney is hereby terminated as a defendant.

Whether the Complaint states a claim against the Village of
Elmwood Park is a closer question. Manos argues that he has
alleged a policy of the Village of Elmwood Park in two ways: (1)
he has alleged that the police department implemented a de
facto policy of depriving him of his lawfully owned firearms
(Compl. Count I ¶ 59); and (2) he has alleged that Braglia, Chief
of Police, participated in the deprivation of his constitutional
rights by falsely representing to the court that Manos' firearms
were undergoing ATF traces and could not be returned until the
court determined whether Manos lived with two convicted felons
(id. ¶¶ 40-42). The Court addresses each in turn.

"Boilerplate allegations of a municipal policy, entirely
lacking in any factual support that a [municipal] policy does
exist, are insufficient. . . . The absence of any facts at all to
support plaintiff's claim renders the allegations mere legal
conclusions of section 1983 liability devoid of any well-pleaded
facts." Baxter by Baxter v. Vigo County Sch. Corp.,
26 F.3d 728, 736 (7th Cir. 1994) (internal quotations omitted). "Although
Fed.R.Civ.P. 8 does not require detailed factual pleading, a
plaintiff's assertions must still direct
the defendant to the factual cause of the plaintiff's alleged
injury." McTigue, 60 F.3d at 382.

However, the Court finds that Manos has sufficiently alleged
that his injury was caused by a policy because the Complaint
includes allegations that a high-ranking police official
personally took part in depriving him of his constitutional
rights. "A complaint sufficiently states a claim when a single
alleged unconstitutional action has been perpetrated by a person
with final policymaking authority." Anderson-El v. O'Keefe, No.
93 C 2608, 1994 WL 48623, at *3 (N.D.Ill. Feb.14, 1994). "An
official with final policymaking authority must actually
participate in the single constitutional wrongdoing, or must
consciously acquiesce in the actions or inactions of
subordinates." Id. (citations omitted).

Manos alleges that the Chief of Police of the Village of
Elmwood Park actually participated in the seizure of Manos'
firearms and the deprivation of his right to due process and
equal protection. (Compl., Count I ¶¶ 40-42.) Because under the
proper circumstances a chief of police can be one with final
policymaking authority, see, e.g., Thomas v. City of Zion, No.
85 C 5952, 1986 WL 9554, at *2 (N.D.Ill. Aug.28, 1986), and
because the factual question of whether the Chief of Police
actually has final policymaking authority for the Village of
Elmwood Park is not one properly addressed on a motion to
dismiss, the Court will not dismiss the Complaint on this ground
at this stage of the litigation. Therefore, the Court denies the
Village of Elmwood Park's motion to dismiss Manos' Fourth and
Fourteenth Amendment Monell claims.

D. Fourteenth Amendment Equal Protection Claim

In Count II, Manos claims that Caira, Braglia, Bertucci,
Fagiano, Elmwood Park Police Department, and the Village of
Elmwood Park "conspired to deprive . . . [him] of his lawfully
owned property by depriving him of . . . equal protection under
the U.S. Constitution." (Compl. Count II ¶ 2.) "Equal protection
demands at a minimum that a municipality must apply its laws in a
rational and non-arbitrary way." Ciechon v. City of Chicago,
686 F.2d 511, 522 (7th Cir. 1982). "This does not mean that error
or mistake in the application of the law gives rise to an equal
protection claim. Rather, it protects against intentional
invidious discrimination by the state against persons similarly
situated." Id. at 522-23. Where unequal treatment is solely
motivated by vindictiveness, "such conduct, so motivated,
violates the equal protection clause." Esmail v. Macrane,
53 F.3d 176, 179 (7th Cir. 1995). To ultimately prevail, plaintiff
must prove
"that the action taken by the state, whether in the form of
prosecution or otherwise, was a spiteful effort to `get' him for
reasons wholly unrelated to any legitimate state objective."
Id. at 180.

The Court rejects defendants' first argument because the
Supreme Court has held that even where the initial seizure of
someone's property is lawful, the prolonged seizure of the
property may render the seizure unreasonable. United States v.
Place, 462 U.S. 696, 709-10, 103 S.Ct. 2637, 77 L.Ed.2d 110
(1983). Therefore, Manos' allegation that defendants' retention
of his firearms for use as evidence in the Skoufis' criminal
trial was not unlawful does not preclude his claim that their
continued retention of his firearms for months after the
conclusion of the criminal proceedings became an unreasonable
seizure in violation of the Fourth Amendment.

Defendants' second argument is equally unavailing. In section
1983 cases, the court adopts the forum state's statute of
limitations for personal injury claims. Baskin v. City of Des
Plaines, 138 F.3d 701, 703 (7th Cir. 1998). In Illinois,
personal injury claims are subject to a two-year statute of
limitations. Id.; 735 ILL. COMP. STAT. 5/13-202. However,
federal law controls as to the date a section 1983 claim accrues.
Kelly v. City of Chicago, 4 F.3d 509, 511 (7th Cir. 1993).
Section 1983 claims "accrue when the plaintiff knows or should
know that his or her constitutional rights have been violated."
Id.

In a single paragraph in their brief in support of the motion
to dismiss, Caira, Braglia, Bertucci, and Fagiano argue that they
are entitled to qualified immunity. In fact, after two sentences
outlining the general rules of qualified immunity, their argument
in its entirety is as follows: "As discussed more fully in this
brief, the acts and/or omissions allegedly attributed to the
individually-named police officers do not violate
clearly-established statutory or constitutional rights. The
officers, in their individual capacities, are entitled to
qualified immunity." (Mem. Law Supp. Village of Evergreen Park
[sic] Defs.' Mot. Dismiss, at 7.) Unfortunately for defendants,
as discussed above, the Court has read the other parts of their
brief and has found that Manos alleges that Caira, Braglia,
Bertucci, Fagiano, and the Village of Elmwood Park have deprived
him of an actual constitutional right. Further, because
defendants do not address whether those constitutional rights
were clearly established at the time of the deprivation, the
Court finds that defendants' qualified immunity argument has not
been properly raised and thus declines to address the issue at
this early stage of the litigation.

CONCLUSION

For the aforementioned reasons, the Court grants in part and
denies in part defendants' Motions to Dismiss [docket nos. 4-1,
14-1]. The Court dismisses Counts III and IV with prejudice.
Counts I and II remain, but the Court grants defendants' motion
to dismiss the following portions of those counts: (1) any claim
against Baker and Krueger for damages is dismissed with
prejudice; (2) any request for relief based on the Second
Amendment is dismissed with prejudice; and (3) any request for
relief based on Fourteenth Amendment's Due Process Clause, except
as to the Village of Elmwood Park, is dismissed with prejudice.
Defendants Devine and Elmwood Park Police Department are hereby
terminated as parties. Defendants Baker, Krueger, Caira, Braglia,
Bertucci, Fagiano, and Village of Elmwood Park remain. Except as
provided herein, defendants' motion to dismiss is denied.

SO ORDERED

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